Citation Nr: 1511135
Decision Date: 03/17/15 Archive Date: 03/27/15
DOCKET NO. 10-40 584 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan
THE ISSUES
1. Entitlement to an increased evaluation for service-connected residuals of prostate cancer, to include the propriety of the reduced evaluation to 40 percent, effective June 1, 2012.
2. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
L. Durham, Counsel
INTRODUCTION
The Veteran served on active duty from January 1967 to March 1970.
These matters come to the Board of Veterans' Appeals (Board) on appeal from May 2009 and December 2012 rating decisions.
The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ) in Detroit, Michigan in November 2014. A transcript of this hearing has been associated with the claims file.
The Board notes additional medical evidence has been associated with the claims file after the July 2011 supplemental statement of the case (SSOC) was issued with respect to the Veteran's prostate cancer claim. However, as this issue is already being remanded for further development, the Board finds no prejudice to the Veteran in proceeding to adjudicate the claims, as done below.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
Additional development is necessary prior to the adjudication of these claims.
Specifically, with regard to the Veteran's residuals of prostate cancer claim, the Veteran denied any urinary symptoms in private treatment records from 2010 and 2011. In June 2011, he was provided a VA genitourinary examination, at which he reported urinary incontinence requiring 2-4 absorbent materials per day. At his November 2014 hearing, the Veteran reported that he changed his absorbent materials 4-6 times per day and that he woke up approximately every half hour at night due to urinary frequency. He said that these symptoms have been the same since his 1998 prostatectomy.
The United States Court of Appeals for Veterans Claims (Court) has held that a Veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In light of the Veteran's assertions at the November 2014 hearing that he changed his absorbent materials 4-6 times a day, and the fact that the Veteran reported changing his absorbent material 2-4 times per day at the June 2011 VA examination, the claim for entitlement to an increased evaluation for service-connected prostate cancer, to include the propriety of the reduced evaluation to 40 percent, effective June 1, 2012, must be remanded in order to afford the Veteran a new VA examination to determine the current severity of this service-connected disability.
With regard to the Veteran's TDIU claim, the representative asserted in the February 2014 Statement of Accredited Representative in Appealed Case that the Veteran has not worked full-time since 2006 due to the severity of his many service-connected conditions, which limit his employment opportunities. The representative further asserted that the Veteran's service-connected conditions have exacerbated and are much worse than when they were previously examined in 2011. The representative went on to request that the Veteran be afforded a new contemporaneous examination so that a more current medical opinion can be given to see whether the Veteran is capable of gaining employment despite his severe and debilitating service-connected conditions. In light of the Veteran's assertions that his service-connected conditions have increased in severity since he was last examined, the Veteran's claim for TDIU must be remanded in order to afford the Veteran the necessary VA examinations to determine the current severity of his service-connected disabilities.
Finally, as these issues are already being remanded for further development, the RO should take this opportunity to obtain any recent VA treatment records that have not yet been associated with the claims file
Accordingly, the case is REMANDED for the following action:
1. Obtain any and all recent VA treatment records that have not yet been associated with the claims file, to specifically include all available records from the VA Ann Arbor Healthcare System (and associated clinics) from October 12, 2012, to the present.
2. Schedule the Veteran for the appropriate VA examinations to ascertain the current severity and manifestations of his service-connected disabilities, to specifically include his residuals of prostate cancer; depression; diabetes mellitus, type II; and erectile dysfunction. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should discuss the effects of the Veteran's service-connected disabilities on his ability to maintain employment. The examiner should provide the underlying reasons for any opinions provided.
3. Then, readjudicate the claims.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2014).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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R. FEINBERG
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).